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Parliament and Brexit in Autumn 2019: a constitutional and procedural guide

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Published: 3 September, 2019Last updated: 13 September, 2019

The UK’s Brexit politics in the run-up to the country’s scheduled EU exit on 31 October are engaging an array of laws, conventions and parliamentary procedures. They will feature in what could be an historic constitutional tussle between government and Parliament.

This page aims to provide constitutional and procedural information needed to navigate Brexit in Parliament in Autumn 2019. It is a living page, and will be updated and added to in order to reflect developments.

An early general election and the Fixed-term Parliaments Act

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Emergency debate under Standing Order No. 24

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On 3 September, MPs opposed to a no-deal Brexit are seeking an emergency debate under Standing Order No. 24, as the first step in an effort to pass a Bill which would become an Act of Parliament preventing a no-deal Brexit on 31 October.

Why an emergency debate under Standing Order No. 24?

The default setting in the House of Commons is that government business has precedence, when it comes to the use of time in the Chamber. This is established in Standing Order No. 14(1).

There are only limited exceptions to this default: there are days set aside for consideration of Private Member’s Bills (although in practice these bills still have little chance of becoming law under normal procedures unless they enjoy government support); and there are days allocated for opposition and backbench business, the timing of which the government controls.

This default setting means that MPs wishing to act against a no-deal Brexit face a two-stage process:

First they must set aside the normal precedence of government business on a specified day or days, in order to gain the opportunity to put anti-no-deal measures (in this case, the planned Bill) to the House. This first step is achieved by passing a motion stating that Standing Order No. 14(1) is set aside or disapplied on specified day or days, and that the business which is being sought by the anti-no-deal MPs has precedence instead.

Then, if they succeed in this step, on the specified day or days they must secure the support of the House for the measures they are seeking – in this case, the Bill.

Emergency debates under Standing Order No. 24: motions and amendments

Under Standing Order No. 24, an emergency debate is intended to allow debate on “a specific and important matter that should have urgent consideration”. The Standing Order specifies that the debate must take place on a motion “that the House has considered” the matter in question. In other words, an emergency debate under Standing Order No. 24 is not intended to be a vehicle for the House to make decisions.

Moreover, a motion that the House has “considered” something has normally been interpreted as a so-called “neutral” motion. Under Standing Order No. 24B, when a “consideration” motion is judged by the Speaker to be “expressed in neutral terms, no amendments to it may be tabled.” However, the new (June 2019) edition of Erskine May, the authoritative guide to parliamentary procedure, states that a consideration motion for a Standing Order No. 24 debate is “normally expressed in neutral terms” (emphasis added), with the “normally” a change from the previous edition. Erskine May refers to a Standing Order No. 24 debate held on 18 December 2018, on a motion moved by Labour leader Jeremy Corbyn that the House had “considered the Prime Minister’s unprecedented decision not to proceed with the final two days of debate and the meaningful vote, despite the House’s Order of Tuesday 4 December 2018, and her failure to allow this House to express its view on the Government’s deal or her proposed negotiating objectives, without the agreement of this House”, as an example of such a debate held on a motion not expressed in neutral terms.

If the Standing Order No. 24 debate goes ahead on 3 September, the Speaker’s judgement as to whether the proposed motion is not neutral, and is therefore amendable, could be critical, since one way for the anti-no-deal MPs to proceed would have been to table a less contentious (but still non-neutral) “consideration” motion and then seek to amend it so as to secure control of time. However, as it turns out, the “consideration” motion being put forward for the debate on 3 September appears to be designed so that, if agreed, it would on its own achieve the anti-no-deal MPs’ objectives with respect to the control of time, without needing amendment. The Speaker’s judgement might, of course, still be critical if he is required to take decisions on amendments tabled by opponents of the motion.

How does an emergency debate under Standing Order No. 24 work?

Securing a Standing Order No. 24 debate involves several steps. The initial and critical decision as to whether the debate may take place is the Speaker’s:

The MP seeking a Standing Order No. 24 debate gives notice to the Speaker privately of his or her wish to do so, so that the Speaker may give permission for the MP to make the proposal in the Chamber, and has some time to consider the application.

After questions and statements at the beginning of the House of Commons sitting day, the MP has three minutes to propose the debate. (On 3 September, because sitting hours on the first day back after a recess are those of a Monday, this will be in the afternoon or early evening.)

Then, if the Speaker determines that the issue is “proper” to be debated under Standing Order No. 24, he asks the House if it gives the MP leave to hold the debate. A single MP may object to granting leave, but 40 MPs standing in their places in support of the proposing Member are sufficient to overturn the objection. If between 10 and 40 MPs stand in support of the proposing Member, there is an immediate division on whether to hold the debate.

If the Standing Order No. 24 debate is granted, its timing and length are at the Speaker’s discretion, subject to a maximum debate length of three hours. Standing Order No. 24 debates are typically held the following day, but they can be held the same day if the Speaker judges the matter to be sufficiently urgent.

In the case of the Standing Order No. 24 debate which is being applied for on 3 September, the Speaker could have a further critical role in deciding whether the motion is not neutral and is therefore amendable, and then in deciding whether any specific proposed amendments may be debated and voted on.

If the Standing Order No. 24 debate being applied for on 3 September is allowed and the Speaker decides that it should take place the same day, the Monday sitting times mean that voting on the main motion and any possible amendments could take place quite late in the evening.

Legislation: Passing a Bill

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The September 2019 anti-no-deal MPs are seeking to pass a Bill which, once it is given Royal Assent, would become an Act of Parliament preventing a no-deal Brexit on 31 October by UK law.

The critical procedural issue surrounding the Bill (as opposed to political and constitutional issues) is the speed with which it could be passed, given that the government has the authority from the Queen to prorogue Parliament as early as 9 September. The default consequence of prorogation is that Bills which have not completed their parliamentary proceedings fall.

Passing a Bill involves set stages in each of the two Houses of Parliament: 1st Reading (a formality), 2nd Reading, committee stage, report stage and 3rd Reading. If the Bill given a 3rd Reading by the second House to consider it differs from the version given a 3rd Reading in the first House (as the result of amendments passed in the second House), there must then be ‘ping-pong’ to reach a version agreed by both Houses.

House of Commons and the emergency debate motion for 3 September

In the House of Commons, the timetabling of the consideration of Bills is normally done via a programme motion put forward by the government and agreed by the House.

For the proponents of the anti-no-deal Bill, the initial step of securing control of time would necessitate also making a move equivalent to passing a programme motion – namely arranging business within the time available, via a motion, so as to ensure completion of the Bill’s House of Commons stages. Such a motion could also claim time on a future day, in the so-called ‘daisy-chaining’ process. The equivalent motion agreed by the House on 3 April to enable speedy passage of the Cooper Bill, for example, ensured that the decks were cleared to enable completion of all House of Commons stages from 2nd Reading in a single day, and that, if the Lords passed amendments to the Bill, time would also be guaranteed for consideration of those amendments in the Commons.

Given that the supporters of the anti-no-deal Bill chose to seek to secure time via an emergency debate motion under Standing Order No. 24, they had two procedural options to arrange business during the time they hope to secure. One option was to leave the task to a separate business motion that they would seek to have the House agree at the start of the day over which they had gained control. This is what occurred on 3 April. As it turns out, however, supporters of the anti-no-deal Bill have gone for the second option: they have wrapped what could have been included in a separate business motion into the Standing Order No. 24 emergency debate motion itself. If the emergency debate motion is agreed on 3 September, there would appear to be no need for supporters of the Bill then to try to pass a separate business motion on the claimed day (4 September).

protect the Bill, if the Bill had completed its parliamentary proceedings, from any possibility of failing to secure Royal Assent before prorogation on 9, 10 or 11 September;

order that a Bill in the next session of Parliament could be considered on the second day of the new session under the programming terms specified for 4 September, if the present Bill had received its third reading but not Royal Assent, and if the Speaker judged that the Bill in the new session “is in similar terms” to the present Bill;

make the 3 September emergency debate motion, if passed, into a Standing Order of the House, rather than an ordinary resolution or order.

House of Lords

In the House of Lords, there is no provision in Standing Orders to give government business precedence, as Standing Order No. 14(1) does in the Commons. Nor does the Lords use programming motions to manage and curtail debate on legislation. Bills are therefore managed by agreement between the party business managers (the ‘usual channels’).

In the Lords, by Standing Order No. 46, no two stages of a Bill may be considered on the same day (except for report stage if no amendments have been made in committee).

One initial mechanism to facilitate very rapid passage of a Bill through the Lords is thus to secure the House’s agreement to a business motion which sets Standing Order No. 46 aside for a particular day or days. This is what took place on 4 April, to facilitate speedy consideration of the Cooper Bill. Such a business motion does not have to be moved by a minister.

Two further factors mean that speedy passage of a Bill can present more challenges in the Lords than the Commons:

In the Lords all amendments tabled must be called and may be debated, unlike in the House of Commons where amendments are selected by the Speaker.

The House of Lords is self-regulating and Members can speak for as long as they wish.

A potential obstacle for supporters of the anti-no-deal Bill in the Lords is thus the capacity for Members to filibuster, in the absence of both programming and a Speaker with powers to control speaking time.

Peer pressure will inevitably come to bear during the course of the debate, to try and bring matters to an orderly conclusion. The issue could come down to the physical and emotional stamina of the peers supporting and opposing the Bill. However, the constitutional fact that the Bill has been passed by the elected House will also figure in their Lordships’ considerations.

If necessary, a closure motion (“That the Question be now put”) could be moved. This motion is not debatable; the House votes immediately. The Companion to the Standing Orders of the House of Lords describes the closure motion as “a most exceptional procedure”. When a Member seeks to move the closure the Lord Speaker (or another Lord who is on the Woolsack and thus in the chair) reads out a paragraph set out in the Companion, drawing attention to its exceptional nature and inviting the Member who has moved the closure motion to reconsider. If they decline to do so, then the question is put to the vote without debate. On 4 April the closure motion was used, successfully, six times during consideration of the Cooper Bill.

There has been speculation in the media that a motion that a Peer “be no longer heard” might also be used to curtail filibustering. However, this is unlikely as, unlike a closure motion, this form of motion is debatable and thus will eat up more time on each occasion it is proposed. The use of this motion is very rare.

An early general election and the Fixed-term Parliaments Act

Under the Act, the next general election is due to be held on Thursday 5 May 2022.

A general election before that date can be held only by fulfilling the conditions for an early general election set by the FTPA.

Two triggering routes

The FTPA establishes two routes by which an early general election can be held.

Either:

The House of Commons passes the motion “That there shall be an early parliamentary general election” with the support of a number of MPs equivalent to at least two-thirds of the total 650 seats (i.e. 434). This was the route used in 2017.

Or

The House of Commons passes the motion “That this House has no confidence in Her Majesty’s Government”, and then 14 full calendar days pass during which the House of Commons does not pass the motion “That this House has confidence in Her Majesty’s Government”. The 14 days start on the day after the no-confidence motion is passed. This route to an early general election has never been used.

The FTPA is silent on the identity of those who must move any of the three motions.

General election dates

The fulfilment of either of these conditions automatically triggers a general election. However, in any particular case, once a general election has been triggered its date remains formally to be set. Under the FTPA, and under either of the routes it establishes to an early general election, the election date is set by the Queen, by proclamation, on the recommendation of the Prime Minister. (As occurred in 2017, the Prime Minister may indicate before seeking the House’s agreement to an early election the election date that s/he will recommend.) The FTPA is silent on the date that may be set. There is no legal requirement that a general election be held on a Thursday, although the last occasion on which a general election was not held on a Thursday was 1931.

The setting of the general election date generates the date of the dissolution of Parliament, and means that dissolution then occurs automatically on that date. The FTPA specified dissolution as the beginning of the 17th working day before polling day, but the Electoral Registration and Administration Act 2013 amended this to the 25th day.

Reference data

Lengths of prorogations since 1979

Prorogation ends a parliamentary session. If there is to be a general election and Parliament must therefore be dissolved, there may or may not be a prorogation before dissolution. If there is no general election, there must be a prorogation before the next session can open. Under the Prorogation Order of 28 August 2019, Parliament was prorogued on 9 September until 14 October. For the prorogation lengths shown in the chart, the first day counted is the day after prorogation, and the last day counted is the day before dissolution (in election years with prorogations) or the day before the start of the next session (in non-election years). Across the 28 years since 1979 and before 2019 in which a parliamentary session ended and there was not a general election, the average length of prorogation was 7 calendar days.

Sources: House of Commons website; House of Commons Library; House of Commons Sessional Returns; House of Commons Votes and Proceedings; House of Commons Hansard

Longest parliamentary sessions since 1945

The chart shows the 14 parliamentary sessions since 1945 which had over 200 House of Commons sitting days (including swearing-in days at the start of new Parliaments). Under the Prorogation Order issued on 28 August 2019, Parliament was prorogued on 9 September. The 2017-19 parliamentary session thus had 341 House of Commons sitting days.

Sources: House of Commons Library; House of Commons Votes and Proceedings

Make-up of the House of Commons by party (last change: 9 September, 2019)

Non-voting Members: As well as the Speaker (included on the chart), non-voting MPs are the three Deputy Speakers (currently two Labour MPs and one Conservative MP). The chart does not show the 7 Sinn Féin MPs, since they do not take their seats. In the event of a tie, the Chair gives the casting vote. According to 'Erskine May', the authoritative guide to parliamentary procedure, the Chair "is at liberty to vote...according to conscience", but it is usual for the Chair to vote for further discussion where possible and, where not, in such a way that decisions are not taken except by a majority.